Citation Nr: 1703361
Decision Date: 02/06/17 Archive Date: 02/15/17
DOCKET NO. 12-32 399 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for sleep apnea.
2. Entitlement to service connection for peripheral neuropathy of the right lower extremity.
3. Entitlement to service connection for peripheral neuropathy of the left lower extremity.
4. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II.
5. Entitlement to an evaluation in excess of 10 percent for hypertension with abnormal echocardiogram.
6. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine.
7. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the cervical spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
M. G. Mazzucchelli, Counsel
INTRODUCTION
The Veteran served on active duty from April 1970 to April 1992.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2010 and October 2012 rating decisions of a Department of Veteran's Affairs (VA) Regional Office (RO).
In May 2016 the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of those proceedings is associated with the claims file. During the hearing, the Veteran indicated his desire to withdraw from appeal the claim for an initial evaluation in excess of 20 percent for diabetes mellitus, type II; that matter is being formally dismissed, below.
The issues of entitlement to service connection for sleep apnea, entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine, and entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the cervical spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In May 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw from appeal the issue of entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II.
2. The Veteran's right and left lower extremity peripheral neuropathy had its onset during service.
3. During the appeals period, the Veteran's service-connected hypertension has required continuous medication. He has a history of diastolic pressure below 110 and systolic pressure below 200.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal as to the claim for entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).
2. The criteria for service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C.A. §§ 1110, 5013A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).
3. The criteria for service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C.A. §§ 1110, 5013A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).
4. The criteria for a rating in excess of 10 percent for hypertension with abnormal echocardiogram have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code 7101 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawal of Issue
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.
During the May 2016 hearing, the Veteran notified the Board that he wished to withdraw from his appeal his claim of entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. Thus, no allegations of errors of fact or law remain for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review this matter, and it must be dismissed.
II. Notice and Assistance
VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016).
A standard letter in November 2009 satisfied the duty to notify provisions.
VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).
The Veteran's service treatment records, service personnel records, and post-service VA and private treatment records have been obtained. The Veteran was provided a VA medical examination in August 2010. The examination, along with subsequent treatment records that include blood pressure readings, is sufficient evidence for deciding the hypertension rating claim. Moreover, as the evidence does not reflect a possible worsening in the disability since the VA examination, an additional examination is not necessary. Thus, VA's duty to assist has been met.
III. Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
The Veteran contends that he has peripheral neuropathy of the right and left lower extremities that had its onset during his period of active duty.
The Veteran's service treatment records show that in June 1974 he was seen with complaints of numbness in his legs. During a neurological consultation, he reported warmth and tingling sensation in his legs. The examiner was unable to determine any type of neurological problem.
In December 2008 EMG/NCV testing noted evidence of peripheral neuropathy of the bilateral lower extremities.
A March 2015 treatment note from D.M.B., D.O., noted that the Veteran had service in "Vietnam and Thailand in 1972 and 1973. He was exposed to Agent Orange. He currently does suffer from a mixed large and small fiber peripheral polyneuropathy. This was confirmed via EMG testing. This diagnosis was made prior to any diagnosis of diabetes. He did see an active duty neurologist while he was still in service who was uncertain of etiology. He also suffers currently from restless legs, which may very well be secondary to his peripheral polyneuropathy. The initial documentation of symptoms of causalgia and paresthesias was the 28th of June of 1974. His symptoms have increase in severity since this time." Dr. B. stated that "given the exposure to known toxin and onset of symptoms it seems reasonable that the cause of peripheral neuropathy is more likely than not service connected to his Agent Orange exposure."
An August 2016 treatment record from T.J.M., M.D., a neurological surgeon, noted that the Veteran had "peripheral neuropathy, which may be related to previous exposure to Agent Orange in Vietnam, and/or type II diabetes mellitus-associated diabetic peripheral neuropathy."
Upon review, the Board finds the evidence is in favor of a finding that the Veteran's peripheral neuropathy of the bilateral lower extremities had its onset in service. The service treatment records show complaints related to numbness in the legs, and a private physician in March 2015 specifically related the currently diagnosed peripheral neuropathy of the lower extremities, diagnosed in 2008, to the inservice complaints. Accordingly, the Board finds service connection is warranted for peripheral neuropathy of the bilateral lower extremities. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 55-56.
IV. Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
The Veteran's service-connected hypertension has been evaluated at 10 percent disabling under Diagnostic Code 7101 since 1992. The current claim for increased rating was filed in October 2009.
Diagnostic Code 7101 pertains to hypertensive vascular disease (hypertension and isolated systolic hypertension). Under that diagnostic code, the current 10 percent rating is assigned for diastolic pressure predominately 100 or more, or systolic pressure predominately 160 or more, or where an individual with a history of diastolic pressure predominately 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominately 110 or more, or systolic pressure predominately 200 or more. A 40 percent rating is assigned for diastolic pressure predominately 120 or more. Lastly, a 60 percent rating is assigned for diastolic pressure predominately 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101.
An August 2010 VA examination noted the Veteran's hypertension was treated with Micadris and Plendil. The examiner noted blood pressure readings of 163/99, 152/86, and 160/84 "due to the reason of uptake of only 'half of medications' that he is supposed to take. Otherwise he reports that usually his blood pressure is controlled."
The record includes other blood pressure readings, including the following: 112/76 in June 2012; 131/83 in February 2013; and 132/80 in February 2014.
All of the blood pressure readings of record during the appeals period are well below the readings necessary for a 20 percent evaluation, with no reading of diastolic pressure at 110 or more or systolic pressure at 200. The evidence also shows that the Veteran's hypertension is controlled with medication. There is no indication in the treatment records, examination report or the Veteran's own statements that his hypertension has worsened to a point where a 20 percent or higher initial rating would be warranted.
Based on this evidence, the Board does not find that there is a question between whether the Veteran's disability picture more closely approximates a 20 percent rating for hypertension. Due to the absence of blood pressure readings equating to diastolic pressure predominately 110 or more, or systolic pressure predominately 200 or more, the Board concludes that an evaluation of 20 percent is not warranted even with consideration of 38 C.F.R. § 4.7.
The Board has also considered whether the use of any other diagnostic code may be warranted to evaluate the Veteran's hypertension, but does not find that any other diagnostic code should be applied. Hypertension is specifically listed in the section of rating schedule for evaluating diseases of arteries and veins and his symptoms are contemplated by the criteria. The other diagnostic codes in this section pertaining to diseases of the arteries and veins are for other disabilities.
As the preponderance of the evidence is against the claim, the benefit-of-the-doubt-rule is not applicable, and a higher initial rating is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's hypertension has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2016). The symptoms of his disability (controlled high blood pressure and their effects) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).
ORDER
The appeal as to the claim for entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, is dismissed.
Service connection for peripheral neuropathy of the right lower extremity is granted.
Service connection for peripheral neuropathy of the left lower extremity is granted.
An evaluation in excess of 10 percent for hypertension with abnormal echocardiogram is denied.
REMAND
The Veteran contends that the currently diagnosed sleep apnea had its onset in service. He and his wife testified that symptoms associated with sleep apnea, including appearing to stop breathing during sleep, began during service and have continued in the years since that time. A sleep study in July 2003 initially diagnosed sleep apnea. The lay statements constitute competent evidence that the Veteran exhibited possible symptoms of sleep apnea in service; however, whether those symptoms reflected an underlying sleep apnea is a medical question that requires medical expertise. As it is unclear whether the Veteran's sleep apnea is related to service, a VA examination is warranted.
A remand of the cervical spine and thoracolumbar spine arthritis ratings claims are necessary for the following reasons. During the Veteran's May 2016 hearing he testified that the condition of his service-connected cervical and thoracolumbar spine disabilities had worsened since the last VA examination in August 2010.
Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination may be appropriate. Caffery v. Brown, 6 Vet. App. 377 (1995); see also VAOPGCPREC 11-95 (1995).
Given the foregoing, a new examination should be scheduled to evaluate the current severity of the Veteran's service-connected degenerative arthritis of the thoracolumbar spine and degenerative arthritis of the cervical spine. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA examination to determine whether the Veteran's obstructive sleep apnea is related to service. The electronic claims file must be made available to the examiner. All necessary tests are to be conducted. The examiner is asked to determine whether it is at least as likely as not (50 percent or more probable) that sleep apnea had its onset in service or is due to any aspect of the Veteran's service? Please explain why or why not. In answering this question, the examiner should address the Veteran's reports regarding the frequency and severity of his sleep apnea symptoms during and since service.
2. Schedule the Veteran for a VA examination addressing his service-connected degenerative arthritis of the thoracolumbar spine and degenerative arthritis of the cervical spine. The examiner must review the Veteran's electronic claims file. The examiner should describe the severity of the Veteran's service-connected cervical spine and low back disabilities. All pertinent symptomatology and findings of those disabilities are to be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should provide the reasoning for the conclusions reached.
3. Then, readjudicate the claims remaining on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs